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[Federal Register Volume 77, Number 183 (Thursday, September 20, 2012)]
[Rules and Regulations]
[Pages 58315-58321]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23091]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2010-0066; SW FRL-9730-5]

Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Final Exclusion

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is granting a 
petition submitted by ExxonMobil Refining and Supply Company 
(ExxonMobil) Baytown Refinery to exclude from hazardous waste control 
(or delist) a certain solid waste. This final rule responds to the 
petition submitted by ExxonMobil to have the F039 underflow water 
generated at the North Landfarm (NLF) in Baytown, Texas excluded, or 
delisted, from the definition of a hazardous waste.
    After careful analysis and evaluation of comments submitted by the 
public, the EPA has concluded that the petitioned wastes are not 
hazardous waste when disposed of in Subtitle D landfills. This 
exclusion applies to 7,427 cubic yards per year of the F039 underflow 
water. Accordingly, this final rule excludes the petitioned waste from 
the requirements of hazardous waste regulations under the Resource 
Conservation and Recovery Act (RCRA) when disposed of in Subtitle D 
landfills but imposes testing conditions to ensure that the future-
generated wastes remain qualified for delisting.

DATES: Effective Date: September 20, 2012.

ADDRESSES: The public docket for this final rule is located at the U.S. 
Environmental Protection Agency Region 6, 1445 Ross Avenue, Dallas, 
Texas 75202, and is available for viewing in the EPA Freedom of 
Information Act review room on the 7th floor from 9:00 a.m. to 4:00 
p.m., Monday through Friday, excluding Federal holidays. Call (214) 
665-6444 for appointments. The reference number for this docket is EPA-
R06-RCRA-2012-0138. The public may copy material from any regulatory 
docket at no cost for the first 100 pages and at a

[[Page 58316]]

cost of $0.15 per page for additional copies.

FOR FURTHER INFORMATION CONTACT: For general information, contact 
Melissa Smith, at (214) 665-7357. For technical information concerning 
this notice, contact Wendy Jacques, U. S. Environmental Protection 
Agency, 1445 Ross Avenue, Dallas, Texas, (214) 665-7395, or 
jacques.wendy@epa.gov.

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
    A. What action is EPA finalizing?
    B. Why is EPA approving this delisting?
    C. What are the limits of this exclusion?
    D. How will ExxonMobil manage the waste if it is delisted?
    E. When is the final delisting exclusion effective?
    F. How does this final rule affect states?
II. Background
    A. What is a ``delisting''?
    B. What regulations allow facilities to delist a waste?
    C. What information must the generator supply?
III. EPA's Evaluation of the Waste Data
    A. What waste did ExxonMobil petition EPA to delist?
    B. How much waste did ExxonMobil propose to delist?
    C. How did ExxonMobil sample and analyze the waste data in this 
petition?
IV. Public Comments Received on the Proposed Exclusion
    A. Who submitted comments on the proposed rule?
    B. Comments and Responses
V. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA finalizing?

    After evaluating the petition, EPA proposed on June 19, 2012, to 
exclude the underflow water from the lists of hazardous wastes under 40 
CFR 261.31 and 261.32 (see 73 FR 54760). EPA is finalizing the decision 
to grant ExxonMobil's delisting petition to have the underflow water 
excluded, or delisted from the definition of hazardous waste subject to 
certain continued verification and monitoring conditions.

B. Why is EPA approving this delisting?

    ExxonMobil's petition requests a delisting for the underflow water 
listed as F039. ExxonMobil does not believe that the petitioned waste 
meet the criteria for which EPA listed them. ExxonMobil also believes 
no additional constituents or factors could cause the waste to be 
hazardous. EPA's review of this petition included consideration of the 
original listing criteria, and the additional factors required by the 
Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 
3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4). In 
making the initial delisting determination, EPA evaluated the 
petitioned waste against the listing criteria and factors cited in 
Sec. Sec.  261.11(a)(2) and (a)(3). Based on this review, EPA agrees 
with the petitioner that the waste is non-hazardous with respect to the 
original listing criteria. If EPA had found, based on this review, that 
the waste remained hazardous based on the factors for which the waste 
was originally listed, EPA would have proposed to deny the petition. 
EPA evaluated the waste with respect to other factors or criteria to 
assess whether there is a reasonable basis to believe that such 
additional factors could cause the waste to be hazardous. EPA 
considered whether the waste is acutely toxic, the concentration of the 
constituents in the waste, their tendency to migrate and to 
bioaccumulate, their persistence in the environment once released from 
the waste, plausible and specific types of management of the petitioned 
waste, the quantities of waste generated, and waste variability. EPA 
believes that the petitioned wastes do not meet the listing criteria 
and thus should not be a listed waste. EPA's decision to delist wastes 
from the facility is based on the information submitted in support of 
this rule, including descriptions of the waste and analytical data from 
the ExxonMobil, Beaumont, Texas facility.

C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only 
if the requirements described in Table 1 and 2 of part 261, Appendix IX 
and the conditions contained herein are satisfied.

D. How will ExxonMobil manage the waste if it is delisted?

    ExxonMobil will either: (1) Continue to accumulate the underflow 
water in a holding tank, sample the water once each calendar year, 
analyze the annual sample for target constituents and submit the 
results to the EPA for review; or (2) route the underflow to the 
underflow collection system and then to the series of ditches to the 
underground Baytown Refinery East sewer. In the latter case, samples of 
the underflow water would be collected from the underflow sump once 
each calendar year, analyzed for target constituents and the results 
submitted to the EPA for review. Ultimately, the underflow will enter 
the waste water treatment system where it is commingled with other 
wastewaters from the Baytown Chemical Plant and Baytown Olefins Plant.

E. When is the final delisting exclusion effective?

    This rule is effective September 20, 2012. The Hazardous and Solid 
Waste Amendments of 1984 amended Section 3010 of RCRA allows rules to 
become effective in less than six months when the regulated community 
does not need the six-month period to come into compliance. That is the 
case here because this rule reduces, rather than increases, the 
existing requirements for persons generating hazardous wastes. These 
reasons also provide a basis for making this rule effective 
immediately, upon publication, under the Administrative Procedure Act, 
pursuant to 5 U.S.C. 553(d).

F. How does this final rule affect states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude two categories of 
States: States having a dual system that includes Federal RCRA 
requirements and their own requirements, and States who have received 
our authorization to make their own delisting decisions.
    Here are the details: We allow states to impose their own non-RCRA 
regulatory requirements that are more stringent than EPA's, under 
section 3009 of RCRA. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the State. Because a dual system (that is, both Federal 
(RCRA) and State (non-RCRA) programs) may regulate a petitioner's 
waste, we urge petitioners to contact the State regulatory authority to 
establish the status of their wastes under the State law.
    EPA has also authorized some States (for example, Louisiana, 
Georgia, Illinois) to administer a delisting program in place of the 
Federal program, that is, to make State delisting decisions. Therefore, 
this exclusion does not apply in those authorized States. If ExxonMobil 
transports the petitioned waste to or manages the waste in any State 
with delisting authorization, ExxonMobil must obtain delisting 
authorization from that State before they can manage the waste as 
nonhazardous in the State.

II. Background

A. What is a delisting petition?

    A delisting petition is a request from a generator to EPA or 
another agency

[[Page 58317]]

with jurisdiction to exclude from the list of hazardous wastes, wastes 
the generator does not consider hazardous under RCRA.

B. What regulations allow facilities to delist a waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to 
remove their wastes from hazardous waste control by excluding them from 
the lists of hazardous wastes contained in Sec. Sec.  261.31 and 
261.32. Specifically, Sec.  260.20 allows any person to petition the 
Administrator to modify or revoke any provision of Parts 260 through 
266, 268 and 273 of Title 40 of the Code of Federal Regulations. 
Section 260.22 provides generators the opportunity to petition the 
Administrator to exclude a waste on a ``generator-specific'' basis from 
the hazardous waste lists.

C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow the 
EPA to determine that the waste to be excluded does not meet any of the 
criteria under which the waste was listed as a hazardous waste. In 
addition, the Administrator must determine where he/she has a 
reasonable basis to believe that factors (including additional 
constituents) other than those for which the waste was listed could 
cause the waste to be a hazardous waste, that such factors do not 
warrant retaining the waste as a hazardous waste.

III. EPA's Evaluation of the Waste Data

A. What waste did ExxonMobil petition EPA to delist?

    In August 2010, ExxonMobil petitioned EPA to exclude from the lists 
of hazardous wastes contained in Sec. Sec.  261.31 and 261.32, 
underflow water (F039) generated from its facility located in Baytown, 
Texas. The waste falls under the classification of listed waste 
pursuant to Sec. Sec.  261.31 and 261.32.

B. How much waste did ExxonMobil propose to delist?

    Specifically, in its petition, ExxonMobil requested that EPA grant 
a standard exclusion for 7,427 cubic yards (1,500,000 gallons) per year 
of the underflow water.

C. How did ExxonMobil sample and analyze the waste data in this 
petition?

    To support its petition, ExxonMobil submitted:
    (1) Historical information on waste generation and management 
practices; and
    (2) Analytical results from five samples for total concentrations 
of compounds of concern (COC)s.

IV. Public Comments Received on the Proposed Exclusion

A. Who submitted comments on the proposed rule?

    The EPA received public comments on the June 2012, proposed rule 
from two citizens. The comments and responses are addressed below.

B. What comments were submitted on the ExxonMobil delisting petition?

    Comment: The DRAS link identified in the Federal Register proposed 
rule (i.e., http://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html) appears to be broken.
    Response: The correct link is http://www.epa.gov/Region5/waste/hazardous/delisting/dras-software.html.
    Comment: It appears that DRAS was run using the ``landfill'' waste 
management unit (WMU) input, but the Proposed Rule states that disposal 
in a surface impoundment is the most reasonable, worst-case disposal 
scenario. Do you know why the landfill WMU was used in DRAS rather than 
the surface impoundment input?
    Response: This was a mistake on the part of EPA. The delisting 
limits have been reevaluated in DRAS using the ``surface impoundment'' 
WMU. The updated DRAS report is in the docket file and the new 
delisting limits are in Table 1 of part 261, Appendix IX of this rule. 
This error does not affect the decision to grant the petition. In all 
cases, the delisting concentration is lower than initially proposed.
    Comment: In the Proposed Rule on page 36450, Table 1, Constituent, 
Maximum Total Concentration (mg/L), among 40 chemicals, 30 species are 
ND (none detected). What EPA method was applied? Were these ND species 
filtered through soil and nature decayed in the soil?
    Response: As documented in the laboratory analytical reports 
included as Attachment 4 to the delisting petition, the following SW-
846 Methods were utilized to analyze samples collected in support of 
the delisting process: 7470 (Mercury), 6020 (Metals), 8270 
(Semivolatiles), 8260 (Volatiles), 9056 (Fluoride), M4500CN E&G 
(Cyanide), SM4500P E (Phosphorus), and 1613B (Dioxins and Furans). The 
laboratory Quality Assurance Plan (Attachment 2 of the delisting 
petition) indicates that the analytical methods cited above are capable 
of achieving the detection and reporting limits required to 
characterize the samples relative to EPA's regulatory limits. A review 
of the laboratory analytical results confirms the required detection 
and reporting limits were achieved. Per the EPA-approved Sampling and 
Analysis Plan, the samples were collected from the Underflow Sump at 
the North Landfarm in the ExxonMobil Baytown Refinery. Water in the 
Underflow Sump originates as rain that falls onto the landfarm plots, 
as irrigation applied to the plots (in the form of fire water, wash 
rack water, or underflow water), or as liquid in waste(s) applied to 
the landfarm plots. These liquids percolate through approximately 10 
feet of waste at the North Landfarm to a fine sand layer that underlies 
the North Landfarm but overlies a clay liner. Within said sand layer 
are a series of pipes (the Underflow Collection Lines) which collect 
the percolation liquids and convey them to the Underflow Sump. 
Therefore, the samples collected are representative of liquids that 
have been ``filtered through soil and nature decayed in the soil'' and 
have had sufficient opportunity to contact constituents present 
therein.

V. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review'' (58 
FR 51735, October 4, 1993), this rule is not of general applicability 
and therefore is not a regulatory action subject to review by the 
Office of Management and Budget (OMB). This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a 
particular facility only. Because this rule is of particular 
applicability relating to a particular facility, it is not subject to 
the regulatory flexibility provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because 
this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
section 203 of UMRA. Because this rule will affect only a particular 
facility, this rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132, ``Federalism,'' (64 FR 43255, 
August 10, 1999). Thus, Executive Order 13132 does not apply to this 
rule. Similarly, because this rule

[[Page 58318]]

will affect only a particular facility, this rule does not have tribal 
implications, as specified in Executive Order 13175, ``Consultation and 
Coordination With Indian Tribal Governments'' (65 FR 67249, November 9, 
2000). Thus, Executive Order 13175 does not apply to this rule. This 
rule also is not subject to Executive Order 13045, ``Protection of 
Children From Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. The basis for 
this belief is that the Agency used the DRAS program, which considers 
health and safety risks to infants and children, to calculate the 
maximum allowable concentrations for this rule. This rule is not 
subject to Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866. This rule does not involve technical 
standards; thus, the requirements of section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do 
not apply. As required by section 3 of Executive Order 12988, ``Civil 
Justice Reform,'' (61 FR 4729, February 7, 1996), in issuing this rule, 
EPA has taken the necessary steps to eliminate drafting errors and 
ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. The Congressional Review Act, 5 U.S.C. 
801 et seq., as added by the Small Business Regulatory Enforcement 
Fairness Act of 1996, generally provides that before a rule may take 
effect, the agency promulgating the rule must submit a rule report 
which includes a copy of the rule to each House of the Congress and to 
the Comptroller General of the United States. Section 804 exempts from 
section 801 the following types of rules (1) rules of particular 
applicability; (2) rules relating to agency management or personnel; 
and (3) rules of agency organization, procedure, or practice that do 
not substantially affect the rights or obligations of non-agency 
parties 5 U.S.C. 804(3). EPA is not required to submit a rule report 
regarding this action under section 801 because this is a rule of 
particular applicability.

Lists of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority:  Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: September 10, 2012.
Carl E. Edlund,
Director, Multimedia Planning and Permitting Division, Region 6.

    For the reasons set out in the preamble, 40 CFR part 261 is amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

0
2. In Tables 1 and 2 of Appendix IX to part 261 add the following waste 
stream in alphabetical order by facility to read as follows:

Appendix IX to Part 261--Waste Excluded Under Sec. Sec.  260.20 and 
260.22

                                Table 1--Waste Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                          Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
ExxonMobil North Landfarm.............  Baytown, TX..............  North Landfarm underflow water (EPA Hazardous
                                                                    Waste Numbers F039 generated at a maximum
                                                                    rate of 1,500,000 gallons (7,427 cubic
                                                                    yards) per calendar year after issuing
                                                                    notice that ExxonMobil will initiate closure
                                                                    of the North Landfarm.
                                                                   For the exclusion to be valid, ExxonMobil
                                                                    must implement a verification testing
                                                                    program for each of the waste streams that
                                                                    meets the following Paragraphs:
                                                                   (1) Delisting Levels: All concentrations for
                                                                    those constituents must not exceed the
                                                                    maximum allowable concentrations in mg/l
                                                                    specified in this paragraph.
                                                                   North Landfarm underflow water. Leachable
                                                                    Concentrations (mg/l): Arsenic--0.0779;
                                                                    Barium--20.6; Benzene--0.0437;
                                                                    Benzo(a)anthracene--0.0453;
                                                                    Benzo(b)fluoranthene--0.206;
                                                                    Benzo(k)fluoranthene--12200; Benzo(a)pyrene--
                                                                    0.0297; Cadmium--0.119; Carbon
                                                                    tetrachloride--0.0549; Chlorobenzene--0.951;
                                                                    Chloroform--0.0379; Chromium--5; Chrysene--
                                                                    4.53; Cobalt--0.738; Copper--51.4; o-Cresol--
                                                                    200; m-Cresol--200; p-Cresol--200; 1,2-
                                                                    Dichloroethane--0.0463; 1,1-
                                                                    Dichloroethylene--0.0612; 2,4-
                                                                    Dinitrotoluene--0.00795; Fluoride--25.2;
                                                                    Hexachlorobenzene--0.0285; Hexachloroethane--
                                                                    0.287; Lead--4.95; Manganese--12.2; Mercury--
                                                                    0.0291; Methyl ethyl ketone--197;
                                                                    Molybdenum--3.09; Nitrobenzene--0.164;
                                                                    Pentachlorophenol--0.0109; Pyridine--0.328;
                                                                    Selenium--1.04; Silver--3.38; Total-TCDD--
                                                                    .00000239; Tetrachloroethylene--0.0106;
                                                                    Trichloroethylene--0.0439; 2,4,6-
                                                                    Trichlorophenol--0.184; Vinyl Chloride--
                                                                    0.00386; Zinc--168.
                                                                   (2) Waste Holding and Handling:
                                                                   (A) Waste classification as non-hazardous
                                                                    cannot begin until compliance with the
                                                                    limits set in paragraph (1) for the North
                                                                    Landfarm underflow water has occurred for
                                                                    two consecutive sampling events.
                                                                   (B) If constituent levels in any annual
                                                                    sample and retest sample taken by ExxonMobil
                                                                    exceed any of the delisting levels set in
                                                                    paragraph (1) for the North Landfarm
                                                                    underflow water, ExxonMobil must do the
                                                                    following:
                                                                   (i) Notify EPA in accordance with paragraph
                                                                    (6) and
                                                                   (ii) Manage and dispose the North Landfarm
                                                                    underflow water as hazardous waste generated
                                                                    under Subtitle C of RCRA.
                                                                   (3) Testing Requirements:
                                                                   Upon notification that it will initiate
                                                                    closure of the North Landfarm, ExxonMobil
                                                                    must perform analytical testing by sampling
                                                                    and analyzing the North Landfarm underflow
                                                                    water as follows:
                                                                   (A) Initial Verification Testing:

[[Page 58319]]

 
                                                                   (i) Collect one representative sample of the
                                                                    North Landfarm underflow water for analysis
                                                                    of all constituents listed in paragraph (1)
                                                                    within the first 30 days after notifying the
                                                                    TCEQ of the intention to initiate closure
                                                                    activities for the North Landfarm. Sampling
                                                                    must be performed in accordance with the
                                                                    sampling plan approved by EPA in support of
                                                                    the exclusion.
                                                                   (ii) If the data from the initial
                                                                    verification testing program demonstrate
                                                                    that the North Landfarm underflow water
                                                                    meets the Maximum Allowable Delisting
                                                                    Concentrations for the indicator parameters
                                                                    included in paragraph (1), collect two
                                                                    representative samples of the North Landfarm
                                                                    underflow water twice during the first six
                                                                    months of waste generation. Analyze the
                                                                    samples for all constituents listed in
                                                                    paragraph (1). Any representative sample
                                                                    taken that exceeds the delisting levels
                                                                    listed in paragraph (1) indicates that the
                                                                    North Landfarm underflow water must continue
                                                                    to be disposed as hazardous waste in
                                                                    accordance with the applicable hazardous
                                                                    waste requirements until such time that two
                                                                    consecutive representative samples indicate
                                                                    compliance with delisting levels listed in
                                                                    paragraph (1).
                                                                   (iii) Within sixty (60) days after taking its
                                                                    last representative sample, ExxonMobil will
                                                                    report its analytical test data to EPA. If
                                                                    levels of constituents measured in the
                                                                    samples of the North Landfarm underflow
                                                                    water do not exceed the levels set forth in
                                                                    paragraph (1) of this exclusion for six
                                                                    consecutive months, ExxonMobil can manage
                                                                    and dispose the non-hazardous North Landfarm
                                                                    underflow water according to all applicable
                                                                    solid waste regulations.
                                                                   (B) Annual Testing:
                                                                   (i) If ExxonMobil completes the testing
                                                                    specified in paragraph (3) above and no
                                                                    sample contains a constituent at a level
                                                                    which exceeds the limits set forth in
                                                                    paragraph (1), ExxonMobil must begin annual
                                                                    testing as follows: ExxonMobil must test a
                                                                    representative grab sample of the North
                                                                    Landfarm underflow water for all
                                                                    constituents listed in paragraph (1) at
                                                                    least once per calendar year. If any
                                                                    measured constituent concentration exceeds
                                                                    the delisting levels set forth in paragraph
                                                                    (1), ExxonMobil must collect an additional
                                                                    representative sample within 10 days of
                                                                    being made aware of the exceedence and test
                                                                    it expeditiously for the constituent(s)
                                                                    which exceeded delisting levels in the
                                                                    original annual sample.
                                                                   (ii) The samples for the annual testing shall
                                                                    be a representative grab sample according to
                                                                    appropriate methods. As applicable to the
                                                                    method-defined parameters of concern,
                                                                    analyses requiring the use of SW-846 methods
                                                                    incorporated by reference in 40 CFR 260.11
                                                                    must be used without substitution. As
                                                                    applicable, the SW-846 methods might include
                                                                    Methods 0010, 0011, 0020, 0023A, 0030, 0031,
                                                                    0040, 0050, 0051, 0060, 0061, 1010A,
                                                                    1020B,1110A, 1310B, 1311, 1312, 1320, 1330A,
                                                                    9010C, 9012B, 9040C, 9045D, 9060A, 9070A
                                                                    (uses EPA Method 1664, Rev. A), 9071B, and
                                                                    9095B. Methods must meet Performance Based
                                                                    Measurement System Criteria in which the
                                                                    Data Quality Objectives are to demonstrate
                                                                    that samples of the ExxonMobil North
                                                                    Landfarm underflow water are representative
                                                                    for all constituents listed in paragraph
                                                                    (1).
                                                                   (iii) The samples for the annual testing
                                                                    taken for the second and subsequent annual
                                                                    testing events shall be taken within the
                                                                    same calendar month as the first annual
                                                                    sample taken.
                                                                   (iv) The annual testing report should include
                                                                    the total amount of delisted waste in cubic
                                                                    yards disposed during the calendar year.
                                                                   (4) Changes in Operating Conditions: If
                                                                    ExxonMobil significantly changes the process
                                                                    described in its petition or starts any
                                                                    processes that generate(s) the waste that
                                                                    may or could affect the composition or type
                                                                    of waste generated (by illustration, but not
                                                                    limitation, changes in equipment or
                                                                    operating conditions of the treatment
                                                                    process), it must notify EPA in writing and
                                                                    it may no longer handle the waste generated
                                                                    from the new process as non-hazardous until
                                                                    the waste meet the delisting levels set in
                                                                    paragraph (1) and it has received written
                                                                    approval to do so from EPA.
                                                                   ExxonMobil must submit a modification to the
                                                                    petition complete with full sampling and
                                                                    analysis for circumstances where the waste
                                                                    volume changes and/or additional waste codes
                                                                    are added to the waste stream.
                                                                   (5) Data Submittals:
                                                                   ExxonMobil must submit the information
                                                                    described below. If ExxonMobil fails to
                                                                    submit the required data within the
                                                                    specified time or maintain the required
                                                                    records on-site for the specified time, EPA,
                                                                    at its discretion, will consider this
                                                                    sufficient basis to reopen the exclusion as
                                                                    described in paragraph (6). ExxonMobil must:
                                                                   (A) Submit the data obtained through
                                                                    paragraph 3 to the Chief, Corrective Action
                                                                    and Waste Minimization Section, Multimedia
                                                                    Planning and Permitting Division, U. S.
                                                                    Environmental Protection Agency Region 6,
                                                                    1445 Ross Ave., Dallas, Texas 75202, within
                                                                    the time specified. All supporting data can
                                                                    be submitted on CD-ROM or comparable
                                                                    electronic media.
                                                                   (B) Compile records of analytical data from
                                                                    paragraph (3), summarized, and maintained on-
                                                                    site for a minimum of five years.
                                                                   (C) Furnish these records and data when
                                                                    either EPA or the State of Texas requests
                                                                    them for inspection.
                                                                   (D) Send along with all data a signed copy of
                                                                    the following certification statement, to
                                                                    attest to the truth and accuracy of the data
                                                                    submitted:
                                                                   ``Under civil and criminal penalty of law for
                                                                    the making or submission of false or
                                                                    fraudulent statements or representations
                                                                    (pursuant to the applicable provisions of
                                                                    the Federal Code, which include, but may not
                                                                    be limited to, 18 U.S.C. Sec.   1001 and 42
                                                                    U.S.C. Sec.   6928), I certify that the
                                                                    information contained in or accompanying
                                                                    this document is true, accurate and
                                                                    complete.
                                                                   As to the (those) identified section(s) of
                                                                    this document for which I cannot personally
                                                                    verify its (their) truth and accuracy, I
                                                                    certify as the company official having
                                                                    supervisory responsibility for the persons
                                                                    who, acting under my direct instructions,
                                                                    made the verification that this information
                                                                    is true, accurate and complete.

[[Page 58320]]

 
                                                                   If any of this information is determined by
                                                                    EPA in its sole discretion to be false,
                                                                    inaccurate or incomplete, and upon
                                                                    conveyance of this fact to the company, I
                                                                    recognize and agree that this exclusion of
                                                                    waste will be void as if it never had effect
                                                                    or to the extent directed by EPA and that
                                                                    the company will be liable for any actions
                                                                    taken in contravention of the company's RCRA
                                                                    and CERCLA obligations premised upon the
                                                                    company's reliance on the void exclusion.''
                                                                   (6) Reopener
                                                                   (A) If, anytime after disposal of the
                                                                    delisted waste ExxonMobil possesses or is
                                                                    otherwise made aware of any environmental
                                                                    data (including but not limited to underflow
                                                                    water data or ground water monitoring data)
                                                                    or any other data relevant to the delisted
                                                                    waste indicating that any constituent
                                                                    identified for the delisting verification
                                                                    testing is at level higher than the
                                                                    delisting level allowed by the Division
                                                                    Director in granting the petition, then the
                                                                    facility must report the data, in writing,
                                                                    to the Division Director within 10 days of
                                                                    first possessing or being made aware of that
                                                                    data.
                                                                   (B) If either the annual testing (and retest,
                                                                    if applicable) of the waste does not meet
                                                                    the delisting requirements in paragraph 1,
                                                                    ExxonMobil must report the data, in writing,
                                                                    to the Division Director within 10 days of
                                                                    first possessing or being made aware of that
                                                                    data.
                                                                   (C) If ExxonMobil fails to submit the
                                                                    information described in paragraphs (5),
                                                                    (6)(A) or (6)(B) or if any other information
                                                                    is received from any source, the Division
                                                                    Director will make a preliminary
                                                                    determination as to whether the reported
                                                                    information requires EPA action to protect
                                                                    human health and/or the environment. Further
                                                                    action may include suspending, or revoking
                                                                    the exclusion, or other appropriate response
                                                                    necessary to protect human health and the
                                                                    environment.
                                                                   (D) If the Division Director determines that
                                                                    the reported information requires action by
                                                                    EPA, the Division Director will notify the
                                                                    facility in writing of the actions the
                                                                    Division Director believes are necessary to
                                                                    protect human health and the environment.
                                                                    The notice shall include a statement of the
                                                                    proposed action and a statement providing
                                                                    the facility with an opportunity to present
                                                                    information as to why the proposed EPA
                                                                    action is not necessary. The facility shall
                                                                    have 10 days from receipt of the Division
                                                                    Director's notice to present such
                                                                    information.
                                                                   (E) Following the receipt of information from
                                                                    the facility described in paragraph (6)(D)
                                                                    or (if no information is presented under
                                                                    paragraph (6)(D)) the initial receipt of
                                                                    information described in paragraphs (5),
                                                                    (6)(A) or (6)(B), the Division Director will
                                                                    issue a final written determination
                                                                    describing EPA actions that are necessary to
                                                                    protect human health and/or the environment.
                                                                    Any required action described in the
                                                                    Division Director's determination shall
                                                                    become effective immediately, unless the
                                                                    Division Director provides otherwise.
                                                                   (7) Notification Requirements:
                                                                   ExxonMobil must do the following before
                                                                    transporting the delisted waste. Failure to
                                                                    provide this notification will result in a
                                                                    violation of the delisting petition and a
                                                                    possible revocation of the decision.
                                                                   (A) Provide a one-time written notification
                                                                    to any state Regulatory Agency to which or
                                                                    through which it will transport the delisted
                                                                    waste described above for disposal, 60 days
                                                                    before beginning such activities.
                                                                   (B) For onsite disposal a notice should be
                                                                    submitted to the State to notify the State
                                                                    that disposal of the delisted materials has
                                                                    begun.
                                                                   (C) Update one-time written notification, if
                                                                    it ships the delisted waste into a different
                                                                    disposal facility.
                                                                   (D) Failure to provide this notification will
                                                                    result in a violation of the delisting
                                                                    exclusion and a possible revocation of the
                                                                    decision.
 
                                                  * * * * * * *
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                                  Table 2--Waste Excluded From Specific Sources
----------------------------------------------------------------------------------------------------------------
               Facility                          Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
ExxonMobil North Landfarm.............  Baytown, TX..............  North Landfarm underflow water (EPA Hazardous
                                                                    Waste Numbers F039 generated at a maximum
                                                                    rate of 1,500,000 gallons (7,427 cubic
                                                                    yards) per calendar year after notification
                                                                    that ExxonMobil will initiate closure of the
                                                                    North Landfarm.
 
                                                  * * * * * * *
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* * * * *
[FR Doc. 2012-23091 Filed 9-19-12; 8:45 am]
BILLING CODE 6560-50-P
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